Sunday, August 14, 2011

The second of three federal Appeals Court decisions on the constitutionality of the Affordable Care Act was handed down on Friday, and it was a defeat for the Obamaadministration.

The Eleventh Circuit three-judge panel in Atlanta ruled 2-1 that the individual mandate violated the Constitution. The majority opinion described the administration’s argument for the ACA’s constitutionality as a “wholly novel and potentially unbounded assertion of congressional authority.” The opinion went on to state: “What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born to the time they die,” and commented scathingly: “We are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”

The Atlanta appeals panel did provide ACA advocates with a few crumbs of good news. In spite of a reputation as a conservative court, the panel ruled unanimously against a lower court decision that the entire ACA should be struck down because its various components were so intertwined with the individual mandate requirement. It also produced a minority opinion from the third judge that “Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of the economy.”

The White House now has the option of appealing the three-judge panel’s decision to the full Eleventh Circuit Court. While the conservative reputation of the full court suggests that no different decision would result, the potential advantage of an appeal is that it could delay the inevitable Supreme Court hearing and ruling until after the 2012 election.

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ROGER COLLIER

Roger Collier is a consultant specializing in health care policy issues. He was CEO of a national health care consulting firm, and Principal-in-Charge of KPMG's national health and welfare consulting practice. His experience includes the design and implementation of innovative programs for HMOs, health insurers, and state and federal agencies. He was a co-author of an early state health care reform bill, has testified on health care reform and other health care issues before legislative committees in several states, and has also served as Chief Information Officer for a major health care payer.